BROPHY v. WESCHLER

Defendant has moved for a new trial. The principal point is whether the court erred in giving an instruction on the last clear chance doctrine -- not whether it was correctly given but whether the evidence justified it.

The action is for demages growing out of a collision between two automobiles. The collision occurred at 8:45 A.M., November 9, 1938. The streets were dry and the weather was clear. It occurred at the intersection of Independence Avenue and Second Street, S.W. Plaintiff was operating his automobile in an easterly direction on Independence Avenue; defendant was operating his automobile in a southerly direction on Second Street.

There was evidence introduced that defendant was negligent in several respects, among others, in failing to come to a stop before entering Independence Avenue in obedience to a "stop" sign, and that this negligence was the proximate cause of the collision. There was also evidence introduced of negligence on the part of plaintiff, among others, in failing to slow down on approaching the intersection and in driving at a greater rate of speed than was reasonable and that this negligence of plaintiff was a contributing cause of the collision. The facts being disputed, it was necessary to submit to the jury the question of defendant's negligence and the plaintiff's contributory negligence.

As to plaintiff's prayers Nos. 2, 10 and 12, which were granted, they appear to state the law. As to Prayer No. 2, it should be pointed out that the court in its general charge to the jury instructed them as follows: "The burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence that defendant in the operation of his automobile was guilty of one or more of the alleged acts of negligence and that such act or acts as are found by you to have occurred constituted negligence and that such negligence was the direct and proximate cause of the collision and the resulting injuries and damages, if any to plaintiff and his automobile." See Danzansky v. Zimbolist, 70 App.D.C. 234, 105 F.2d 457.

As to the point that the verdict is excessive, I am unable to find that it is so excessive as to justify a new trial or a new trial unless a remittitur be filed. There was nothing in the trial of the case indicating that the verdict was the result of passion or prejudice.

There appear to be no sound bases for the remaining contentions of the defendant in support of his motion for a new trial.

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